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Toma & Doyle (No 2)

Toma & Doyle (No 2)

Case [2023] FedCFamC1F 477 16 June 2023

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Toma & Doyle (No 2) [2023] FedCFamC1F 477

File number(s): SYC 2425 of 2020

Judgment of: STRUM J

Date of judgment: 16 June 2023

Catchwords: FAMILY LAW – MAJOR COMPLEX FINANCIAL PROCEEDINGS LIST – JOINDER – Where the wife seeks to join 15 further respondents – s 90AE and s 90AF of the Family Law Act 1975 (Cth) (“Act”) – Discussion of r 3.01 of Federal Circuit and Family Court of Australia (Family Law) Rules 2021 – Whether third parties’ rights may be directly affected – Whether participation necessary – Whether s 90AE and s 90AF may be invoked after s 79 proceedings completed – Joinder of one further respondent ordered – Joinder of other proposed respondents disallowed because their participation only possibly necessary.

Legislation:
Family Law Act 1975 (Cth) ss 4(1)(f), 79, Pt VIIIAA 90AE, 90AF, 114

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 2.22, 3.01, 3.03, 3.03, 6.06, 11.01, 11.07, 11.1.4, 11.32

Cases cited:
Arnold & Arnold [2021] FamCA 226

B Pty Ltd and Ors & K and Anor (2008) FLC 93-380; [2008] FamCAFC 113

Barro & Barro (1983) FLC 91-300; [1982] FamCA 77

Gould & Gould & Swire Investments Ltd (1993) FLC 92-434; [1993] FamCA 126

John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19

Jordan & Sutton (No 2) [2022] FedCFamC1F 850

Pencious & Pencious [2010] FamCA 605

Wayne & Dillon and Anor [2008] FamCAFC 204

XYZ Pty Ltd and Anor & Charisteas and Ors; ABC Pty Ltd & Charisteas and Ors (2017) FLC 93-782; [2017] FamCAFC 112

Division: Division 1 First Instance

Number of paragraphs: 77

Date of hearing: 7 June 2023

Place: Sydney

Counsel for the Applicant: Mr T North SC

Solicitor for the Applicant: Dorter Family Lawyers and Mediators

Counsel for the Respondent: Mr R Dick SC with Mr N Ford

Solicitor for the Respondent: Clinch Long Woodbridge Lawyers

Counsel for the Proposed Second Respondent: Mr D Roche with Mr S Thomson

Solicitor for the Proposed Second Respondent: Clayton Utz

The Proposed Third to Sixteenth Respondents No appearance
ORDERS

SYC 2425 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS TOMA

Applicant

AND:
MR DOYLE

Respondent

order made by:

STRUM J

DATE OF ORDER:

16 June 2023

THE COURT ORDERS THAT:
1.Q Pty Ltd in its capacity as trustee for the S Share Trust Deed be joined as a second respondent to the proceeding.
2.The applicant’s Application in a Proceeding filed on 15 May 2023 and the Responses thereto of the first and second respondents otherwise be dismissed.
3.The second respondent file a Notice of Address for Service within 7 days.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Toma & Doyle (No 2)

Details

AGLC: Toma & Doyle (No 2) [2023] FedCFamC1F 477
Case: [2023] FedCFamC1F 477
Decision Date

CaseChat Overview and Summary

In Toma & Doyle (No 2), Ms Toma, the applicant, sought to join 15 further respondents to her proceedings for alteration of interests in property pursuant to s 79 of the Family Law Act 1975 (Cth) ("Act"). Mr Doyle, the husband and respondent, opposed the joinder of the proposed respondents. The proposed second respondent, Q Pty Ltd in its capacity as trustee for the S Share Trust Deed, also opposed its joinder. The court considered whether the rights of the proposed respondents may be directly affected by an issue in the proceeding and whether their participation as a party was necessary to determine all issues in dispute in the proceeding. The court found that Q Pty Ltd in its capacity as trustee for the S Share Trust Deed must be joined as a second respondent to the proceeding as its rights may be directly affected by an issue in the proceeding and its participation was necessary to determine all issues in dispute. The joinder of the other proposed respondents was declined as their participation was not necessary to determine all issues in dispute in the proceeding.

Orders